Taleb v The Queen
[2014] VSCA 96
•22 May 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0226
| SAMMY TALEB | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NEAVE and WEINBERG JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 1 April 2014 |
| DATE OF JUDGMENT | 22 May 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 96 |
| JUDGMENT APPEALED FROM | DPP v Taleb (Unreported, County Court of Victoria, Judge Stuart, 6 November 2013) |
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SENTENCING – Application for leave to appeal sentence – One charge of trafficking in a drug of dependence in a commercial quantity – Total effective sentence of two years and nine months’ imprisonment with a non-parole period of one year and six months – Application of parity principle where co-offender’s sentence is very lenient or manifestly inadequate – No justified sense of grievance on the part of the applicant in the trial judge’s application of the parity principle – No error in the application of general deterrence – Sentence not manifestly excessive – Application refused – Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 – Wilson v The Queen (2000) 116 A Crim R 90.
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| Appearances: | Counsel | Solicitors | ||
| For the Applicant | Mr R Melasecca | Melasecca Kelly & Zayler | ||
| For the Respondent | Mr D A Trapnell QC | Mr C Hyland, Solicitor for Public Prosecutions | ||
NEAVE JA
WEINBERG JA:
On 25 October 2013 the applicant, Sammy Taleb, pleaded guilty to one charge of trafficking in a drug of dependence in a commercial quantity. He was sentenced on 6 November 2013 as follows:
| Charge on Indictment | Offence | Maximum | Sentence |
| 1 | Trafficking in a drug of dependence — commercial quantity [s 71AA of the Drugs, Poisons and Controlled Substances Act 1981 (Vic)] | 25 years | 2 years and 9 months |
| Total Effective Sentence: | 2 years and 9 months | ||
| Non-Parole Period: | 1 year and 6 months | ||
| Pre-sentence Detention Declared: | 1 day | ||
| 6AAA Statement: | 4 years’ imprisonment, with a non-parole period of 3 years | ||
| Other orders: Disposal Order; Forensic Sample Order | |||
The applicant now seeks leave to appeal against that sentence.
Circumstances of the offending
In March 2011 the police commenced an operation named Retread, which focussed on the applicant’s older brother, Ahmad Taleb (‘Ahmad’), who was conducting a substantial drug trafficking business. A number of covert operatives collected evidence that Ahmad and his associates were trading in drugs. The applicant and one of Ahmad’s other brothers, Haissem, were involved in the operation. The prosecution of all the offenders was based on this evidence and on phone calls between the various participants.
Three of Ahmad’s associates were convicted in the Magistrates’ Court of trafficking. For the purposes of this appeal it is unnecessary to describe their personal circumstances or the sentences imposed on them.
Ahmad Taleb, the applicant and three others were sentenced in the County Court after pleading guilty to various offences.
Ahmad Taleb, who was aged 38 when he was sentenced, pleaded guilty to trafficking in a commercial quantity of amphetamine, methylamphetamine, MDMA and cannabis, between 28 June and 11 November 2011. In his sentencing reasons, Judge Grant made the following remarks about the quantities trafficked by Ahmad:
Between 19 October and 24 October, you completed three separate transactions worth $3,000, $10,500 and $1,700. During these dealings, you required one of the purchasers to provide his drivers licence for copying. You did this to provide re-assurance that he was not a police officer.
On 24 November 2011, a search warrant was executed at your home. A search of the property located - $12,035.40; deal bags containing a total of 14 grams of methylamphetamine; plastic bags containing a total of 7.2 grams of cannabis, a plastic bag containing 2 ecstasy pills …
It is difficult to determine how much profit you made from your drug trafficking enterprise. However, it is conceded that the operation involved a commercial quantity. Mr Pickering submitted that the ‘call log’ reveals the breadth and size of your drug trafficking operation.
The evidence from the ‘call log’ and the evidence from the covert operatives, confirms that you were managing and coordinating significant drug transactions. You were actively involved with a group of drug suppliers and dealers selling amphetamines, methylamphetamines, MDMA and cannabis. You engaged in this behaviour over a five month period. This is not the case of a man engaged in trafficking ‘to feed his habit.’ You were motivated by the desire for financial gain.[1]
[1]DPP v Taleb [2013] VCC 1311 [5]–[8].
Ahmad was sentenced by Judge Grant to a term of five years and six months’ imprisonment with a non-parole period of three years for that offence. He also pleaded guilty to three charges of possessing a drug of dependence and was sentenced to six months and two periods of three months’ imprisonment on those charges. The judge ordered that these sentences be served concurrently with the base sentence.
The applicant, who was 35 years old at the date of sentence, pleaded guilty to trafficking in a commercial quantity of amphetamines between 28 June and 24 November 2011. The quantity relied upon was 500 grams, which was at the lower end of the range of a commercial quantity. The prosecution relied on numerous telephone conversations between Ahmad and the applicant, occurring on 16 separate days, between 12 July and 2 November 2011, which demonstrated that the applicant was active in Ahmad’s drug trafficking operation. The Crown accepted that Ahmad was the principal in the operation.[2]
[2]DPP v Taleb (Unreported, County Court of Victoria, Judge Stuart, 6 November 2013) (‘Sentencing Reasons’).
Harold Kelly, aged 43 at sentence, pleaded guilty to trafficking in methylamphetamine. Phone calls showed that he was a middle-man between Ahmad and an amphetamine cook. The calls between the men were in code and did not reveal the amount trafficked, but Chief Judge Rozenes accepted that the amount was at the lower end of the scale for a trafficking offence. The judge found that Mr Kelly was a drug user who slipped into a trafficking role and that he had re‑commenced abusing drugs and alcohol following a traumatic experience which affected his family. He was sentenced to an 18 month community corrections order with 150 hours unpaid community work and orders were made for his assessment, treatment and supervision.[3]
[3]DPP v Kelly [2013] VCC 1028.
Haissem Taleb (Haissem), aged 32 at sentence, was the younger brother of Ahmad and of the applicant. He pleaded guilty to trafficking in methylamphetamine between 28 June and 24 November 2011. Chief Judge Rozenes observed that there was no detail about the quantities trafficked, other than the total amount of 155 grams of the drug traded on four separate occasions. His Honour accepted that Haissem had stepped into Ahmad’s business while Ahmad was overseas, but was not involved prior to Ahmad’s departure and did only one drug deal after Ahmad returned. The Crown accepted the informant’s view that Haissem was the least culpable of the offenders and the most remorseful. Haissem was sentenced to 18 months’ imprisonment, wholly suspended for three years.[4]
[4]DPP v Taleb (Unreported, County Court of Victoria, Chief Judge Rozenes, 21 December 2012).
Collette Cutri, pleaded guilty to one charge of trafficking in a drug of dependence, over the same period as the other offenders. In recorded phone calls amounts of $10,000 and above were discussed, but it was not possible to ascertain the precise amount trafficked. Chief Judge Rozenes said that Ms Cutri was selling or attempting to sell one or two ounce lots of various drugs and that she had pleaded guilty to trafficking in ‘a not inconsiderable amount’ of methylamphetamine. Ms Cutri, who was a drug user, told the police she had wanted to make money for herself. She was sentenced by Chief Judge Rozenes to 18 months’ imprisonment, to be served concurrently with a sentence of 12 months’ imprisonment, which she was already serving for credit card fraud. His Honour fixed a new single non‑parole period of six months to be served from the date of sentence for the trafficking offence. Unlike the other offenders, Ms Cutri had a significant number of prior convictions. She admitted to 26 convictions from 12 court appearances, most of which were for drug or dishonesty offences.[5]
[5] DPP v Cutri [2013] VCC 1058.
The Crown conceded that the applicant worked on the instructions of Ahmad and played a subsidiary role in the trafficking operation. The learned sentencing judge observed that Ahmad was a powerful and manipulative man. In relation to the applicant his Honour found that:
It does not appear that you were unwilling at any point in time to do the bidding of your brother. You were active in his business, and you were active, on that material, over a period of some five months. It is plain to me that your role was a continuous one for that period. What distinguishes you from your brother is he was the principal of that business, and you, although you were an associate and one of many, played a not unimportant role in facilitating that business.
Your brother pleaded guilty to a similar charge over the same period of trafficking in a commercial quantity amphetamines. Whilst it was conceded that you were towards the lower end of a commercial quantity, he was dealt with on the basis that his trafficking involved the higher end of the range of a commercial quantity; large commercial quantity, as I have said, being 1000 grams.[6]
[6]Sentencing Reasons [11]–[12]. The reference to a large commercial quantity appears to have been a slip by his Honour as Ahmad pleaded guilty to trafficking in a commercial quantity. Elsewhere in the plea and the sentencing reasons his Honour recognises that the men were both convicted of trafficking in a commercial quantity.
His Honour expressed astonishment that the applicant had followed Ahmad’s directions, remarking that:
Why your brother was put on the pedestal that he was, given his trafficking in drugs during this period of time, is utterly beyond me. You, although you were a man little educated, and I think a simple man in your approach, were 34 years old at the time. It is not as if you were some naïve youth. You could have made the decision not to engage in your brother’s activities from the beginning. You could have desisted. You did not. Those choices were available from beginning to end.[7]
[7]Sentencing Reasons [19].
Grounds of appeal
The applicant seeks leave to appeal on the following grounds:
1.The learned sentencing judge gave undue weight to general deterrence having regards to his findings in respect of the applicant.
2. The learned sentencing judge erred in not applying principles of deterrence by a sentence other than one of immediate imprisonment.
3.The learned sentencing judge gave insufficient weight to the anguish of the offender of being unable to continue to care for members of his family and the members of the organisations in the community to which he was bonded doing voluntary work, making his imprisonment more burdensome.
4. The learned sentencing judge erred in the application of the principles of proportionality by imposing a sentence which did not sufficiently distinguish the role of the applicant with the principal offender and the other co-accused.
5. The total effective sentence and non-parole period imposed upon the applicant are manifestly excessive, particularly having regard to the applicant’s guilty plea, his excellent rehabilitation, his contributions to the community and to those in need of him and the attitude of the prosecution.
Counsel’s submissions on grounds 1, 2, 3 and 5
Grounds 1, 2 and 3 complain about the weight which his Honour gave to various matters. In essence, these grounds are particulars of ground 5, which complains that the individual sentences and total effective sentence are manifestly excessive.
Counsel for the applicant submitted that the judge had accepted that the applicant had done everything in his power to rehabilitate himself, including recovering from his own drug addiction, and that trafficking in a commercial quantity should not inevitably produce a sentence of imprisonment. He contended that in these circumstances the community would have been better protected from the harm of drug trafficking by imposing a community corrections order which would result in the applicant’s permanent reform. The applicant also argued that there was no provision in the legislation which required the imposition of a term of imprisonment for this offence, and the strong mitigating factors applicable to the applicant and his exceptional efforts at rehabilitation, had required the judge to make such an order.
In the course of his sentencing reasons his Honour said that:
If it were a matter of simply taking into account matters personal to you, I would do as Mr Melasecca urged, but there are wider matters that I must take into account; general deterrence, as I adverted to, being one of them, and denunciation of this court.
In the result there is but one sentence which I must impose, and that is a period of imprisonment.[8]
[8]Sentencing Reasons [43]–[44].
The applicant argued that this observation demonstrated that the judge had wrongly regarded himself as bound to impose a term of imprisonment on the applicant, rather than extending leniency to him because of his excellent prospects of rehabilitation.
The applicant submitted that the non-parole period of 18 months’ imprisonment was 12 months above the lower end of the range on which the prosecutor had relied, when making a MacNeil-Brown[9] submission to his Honour, about the appropriate sentencing range. This submission appears to be an error as the final range[10] submitted by the prosecutor was a head sentence of between three and four years with a non-parole period of between one and two years. But in any case, his Honour was not required to sentence within that range, even before the decision of the High Court in Barbaro v The Queen.[11]
[9](2008) 20 VR 677.
[10]The original range put forward by the prosecutor was a head sentence of between four to five years. His Honour queried that range because it did not adequately differentiate between the sentence imposed on Ahmad, who was the principal in the drug trafficking operation and the applicant, who played a lesser role.
[11](2014) 88 ALJR 372. In that case the High Court held that submissions from the prosecution as to the available sentencing range are not a relevant consideration for the purposes of the exercise of the sentencing discretion.
In support of ground 3 the applicant argued that the judge had made powerful findings about the applicant’s dedication in assisting his nephew and niece, both of whom suffered from disabilities, his fiancée, who had tachycardia, and his elderly parents. He had also provided outstanding service to the Rogers’ Youth Gym and the Father Bob Maguire Foundation. The applicant’s imprisonment would be particularly burdensome to him because he would suffer anguish as the result of being unable to assist his family or work as a volunteer. The applicant argued that the sentence imposed by his Honour showed that he must have failed to give adequate weight to these factors.
The respondent submitted that discussion during the plea demonstrated that the judge was well aware that he could make a community corrections order if he considered it appropriate to do so. The judge was entitled to give weight to general deterrence and denunciation of the offence in sentencing the applicant and the sentence imposed was not manifestly excessive.
Conclusion on grounds 1, 2, 3 and 5
It is trite law that the ground of manifest excess is difficult to make out. The relevant question for an appellate court is not what sentence this Court would have imposed, but rather whether the sentence imposed lay outside the range of the sentencing judge’s sentencing discretion.
The offence to which the applicant pleaded guilty is a very serious one, attracting a maximum penalty of 25 years imprisonment. His Honour made detailed reference to the applicant’s personal circumstances, including his emotional and financial dependence on his older brother Ahmad who was the controlling figure in the drug trafficking operation. His Honour acknowledged that the applicant was ‘a simple man and that at the time of the offending he was a drug addict who was estranged from his family and living in poor circumstances’.
His Honour’s sentencing reasons contain an extensive discussion of mitigating factors, including the applicant’s guilty plea at the earliest available opportunity, his excellent prospects of rehabilitation, his recovery from addiction and the assistance he has provided to members of his family, as a volunteer at Rogers’ Youth Gym and as a driver for the Father Bob Maguire Foundation.
Nevertheless, the sentencing judge considered that a term of imprisonment was appropriate having regard to the seriousness of the trafficking, which occurred over a five month period. We would reject the applicant’s submission, that the judge considered he was compelled to impose a term of imprisonment. During the plea hearing there was extensive discussion about whether it would be appropriate to impose a community corrections order in the circumstances of this case. That discussion demonstrates that his Honour was well aware of his power to make such an order.
The applicant conceded that general deterrence was a paramount consideration in sentencing an offender for trafficking in drugs. It was not a sentencing error for his Honour to give weight to general deterrence and denunciation.
Moreover his Honour specifically said that it was unnecessary to take account of specific deterrence, because of the efforts the applicant had made in rehabilitating himself. The applicant’s written submission referred to the fact that a judge may show mercy to an offender in circumstances where leniency might lead to reform. But the fact that the judge did not impose a community corrections order or a lower term of imprisonment in this case does not demonstrate that the sentence was manifestly excessive.
In our view, the sentence imposed on the applicant was lenient, even having regard to the strong mitigating factors which the judge was required to take into account.
Grounds 1, 2, 3 and 5 are not reasonably arguable and leave to appeal on these grounds should be refused.
Ground 4
Ground 4 complains that the difference between the sentence imposed on the applicant, and his brother, Ahmad, who was a principal in the drug trafficking operation, was such as to give rise to a justifiable sense of grievance in the applicant, who played only a subsidiary role.
Both Ahmad and the applicant were convicted of trafficking in a commercial quantity. At both the plea hearing, and on the hearing of this application, the applicant submitted that the Crown opening at the plea hearing had referred to Ahmad trafficking in quantities of drugs amounting to many multiples of a large commercial quantity. The applicant submitted that neither the head sentence nor the 18 months difference in the non-parole period imposed on the applicant and on Ahmad adequately recognised the significant difference between the moral culpability of the applicant and Ahmad. In support of the parity argument the applicant also placed some reliance on the sentence imposed on Ms Cutri and, to a lesser degree, the sentence imposed on Mr Kelly.
At the plea hearing the Crown did not dispute his Honour’s comment during discussion that Ahmad had trafficked in about 46 times a commercial quantity and 26 times a large commercial quantity of drugs. Reference was also made in the Crown opening to Ahmad being in possession of 14,852 grams of amphetamine and cocaine, a large quantity of other drugs and having had cash dealings of $1,616 million. The applicant contended that the Crown could not resile from the quantities relied upon in the opening. The huge amounts of drugs trafficked by Ahmad reinforced the submission that the judge had not adequately differentiated between the sentence imposed on him and the sentence imposed on Ahmad.
The Crown submitted that although reference had been made to those figures in the Crown opening, and during the plea, the prosecutor had also said that it was difficult to determine how much profit Ahmad had made or to determine the precise amount of drugs in which he had trafficked. During the plea, the Crown accepted that the amounts might have been less than those stated in the opening because of duplication in counting the amounts to which the offenders referred in their phone calls. The Crown submitted that it was not open to the sentencing judge to take account of the amounts referred to at Ahmad’s plea hearing in order to establish that the applicant was entitled to have a justifiable sense of grievance about the sentence imposed on him, because Ahmad pleaded guilty only to a charge of having trafficked in a commercial quantity. It would be inconsistent with that plea to take account of the larger amounts relied upon in the Crown opening.
The Crown also submitted that, even having regard to Ahmad’s conviction for trafficking in a commercial quantity, the sentence imposed on him was very lenient. The court should not impose a manifestly inadequate sentence on the applicant, in order to take account of the lenient (and arguably manifestly inadequate) sentence imposed on Ahmad. The principle of parity did not require such a reduction to be made.
Following the hearing of the appeal, the applicant and the respondent were asked to prepare supplementary submissions, addressing the question whether parity would require the reduction of the applicant’s sentence to a point where it would be otherwise regarded as manifestly inadequate, if the Court considered that the sentence imposed on Ahmad was itself inadequate.
Conclusion on ground 4
Relevance of the Crown opening relating to Ahmad’s sentence
Although the Crown opening at the plea hearing referred to very large quantities of drugs said to have been trafficked by Ahmad, it was conceded by the Crown that there might well have been some double counting in these amounts. His Honour recognised that there were difficulties in ascertaining the precise amount of drugs trafficked by Ahmad and by the applicant.
In our opinion, it does not lie in the mouth of the Crown to resile from the opening relied upon at Ahmad’s plea hearing in order to refute the applicant’s submission that his sentence did not take adequate account of parity. Although the Crown later conceded that the precise amount of the drugs trafficked by Ahmad could not be established, the Crown should not be permitted to allege that Ahmad traded in huge quantities of drugs for the purposes of Ahmad’s sentence and then to argue that Ahmad was involved in a smaller trafficking operation in order to argue that the sentence imposed on the applicant did not breach the parity principle.[12] The fact that Ahmad pleaded guilty to trafficking in a commercial quantity, rather than trafficking in a large commercial quantity does not make this conduct acceptable.
[12]The imprecision about the amounts trafficked by Ahmad and by the applicant may have made it impossible for the Crown to present their plea submissions in the manner described as appropriate in DPP v Holder [2014] VSCA 61 [10].
However, even if the quantity of drugs traded by Ahmad is artificially limited to the upper end of a commercial quantity, the sentence imposed on him was very lenient.[13]
The conflict between the principle of parity and the principle requiring an offender to receive an adequate sentence
[13]Compare R v Ioannou (2007) 17 VR 563, 564–70 [23].
There is dispute in the authorities about whether, on an appeal against sentence by an offender,[14] the principle of parity requires reduction of one offender’s sentence to the point that it becomes manifestly inadequate, when a co-offender has received a manifestly inadequate or very lenient sentence. In some cases the view has been expressed that equal justice may require the imposition of a low or possibly even manifestly inadequate sentence on an offender, to give effect to parity, even if the co‑offender’s sentence is itself manifestly inadequate.
[14]As to the difference between an offender’s appeal and a Crown appeal when the issue of parity arises see Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 (‘Green’).
This seems to have been the view of Winneke P in R v William,[15] where his Honour considered that the co-offender, who had received a lower sentence than the applicant, was more culpable than the applicant and that the co-offender’s sentence was ‘far too low’. His Honour said that:
The disparity leads to the unfortunate consequence that the injustice will have to be remedied by quashing the sentence imposed upon the appellant and imposing a less severe sentence, even though the sentence imposed upon him was well within the range of sentences open to be imposed for this class of offence. … [J]ustice between co-offenders must prevail, and the only way in which justice can be done is to lower the sentence imposed upon the appellant to the same sentence which was imposed upon the co-offender.[16]
[15][2001] VSCA 130.
[16]Ibid [13].
It may be observed, however, that there does not appear to have been any argument on the relationship between parity and other sentencing principles in William v The Queen.[17] Buchanan JA, who delivered the main judgment, expressed no view on this issue, and Brooking JA simply agreed with the reasons of Winneke P and Buchanan JA.[18]
[17]R v William [2001] VSCA 130.
[18]See also R v Ritter [2000] VSCA 135 [22] where the point about manifest inadequacy does not appear to have been argued, and Phillips JA observed that the sentence imposed on the co-offender was lenient, but that parity was ‘the touchstone’ against which the appellant’s sentence had to be weighed.
In Scerri v The Queen[19] this Court accepted the view of the sentencing judge that the sentence imposed on the co-offender was ‘extraordinarily lenient’. In circumstances where there had been no Crown appeal against that sentence, Maxwell P and Buchanan JA regarded the concept of equal justice as the overriding consideration in sentencing the offender. In their joint reasons Maxwell P and Buchanan JA said that:
[19][2010] VSCA 287 [45]–[47].
As the High Court and this Court have repeatedly said,[20] proper concern for parity of sentencing between co-offenders is one of the fundamental requirements of the rule of law, and one of the conditions of just punishment.[21] Thus, in R v William,[22] the Court (Winneke P) said:
[20]See, for example, Lowe v The Queen (1984) 154 CLR 606, 610–11 (Mason J); R v William [2001] VSCA 130 [11] (Buchanan JA), [13] (Winneke P) (Brooking JA agreed); Teng v The Queen (2009) 22 VR 706, 723; Nguyen v The Queen [2010] VSCA 180 [25] (Maxwell P, Weinberg JA).
[21]For recent illustrations of the importance of ensuring parity of sentencing, see Morgan v The Queen [2010] VSCA 248 and Harrington v The Queen [2010] VSCA 249. The latter case involved sentencing for the offence of trafficking in a large commercial quantity of a drug of dependence.
[22][2001] VSCA 130 [13] (Brooking JA agreed).
The truth is that the sentence imposed upon the co-offender was … far too low. But justice between co-offenders must prevail …
We have not overlooked the fact that the judge was referred to, and relied on, the following statement by Eames JA in R v Nguyen:[23]
Where the comparator sentence is excessively low, the correct approach of the sentencer is not to seek to match that lenient sentence with one of his or her own, but to have regard to the other sentence, taking it into account in a broad way, when exercising his or her own discretion, and giving it such weight as it deserves in the circumstances of the case.
We are, of course, bound by what the High Court has said regarding the importance of parity. Like the Court in Teng v The Queen,[24] we take as our guide the following statement by Mason J in Lowe v The Queen:[25]
Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.
[23][2005] VSCA 40 [20] (Callaway and Buchanan JJA agreed).
[24](2009) 22 VR 706, 723.
[25](1984) 154 CLR 606, 610–11.
The alternative view is that although the sentence imposed on a co-offender will always be a relevant sentencing factor, parity does not require the reduction of an offender’s sentence to the level of manifest inadequacy in order to match the other sentence. That view was expressed by this Court in Wilson v The Queen[26] where the disparity between the sentences imposed on the appellant and his co-offender gave rise to a justifiable sense of grievance. The Court considered that in circumstances where the co-offender’s sentence was lenient, although perhaps not manifestly inadequate, this did not necessarily require appellate intervention, because the question whether the Court should reduce the appellant’s sentence fell within its discretion.[27] Chernov JA said that:
How this discretion should be exercised where the lenient sentence is regarded as being clearly inadequate, yet the higher sentence is within range and not attended with doubt, poses a particular difficulty. In such circumstances, the court must weigh the competing considerations of the need to eliminate the justified sense of grievance by the appellant on the one hand and the public interest in having the appropriate sentence maintained on the other. Thus, in MacGowan,[28] King, C.J. recognised that where the lower sentence is clearly inadequate, yet the sentence under attack is appropriate and within range, to reduce it to the lower sentence in order to establish parity may amount to compounding a sentencing error which would be unacceptable to the public conscience. In those circumstances, the sense of grievance experienced by the offender may have to be tolerated by the public interest. A conclusion substantially to that effect was reached by the majority in Goddard[29]…
In my view, notwithstanding that the sentence imposed on [the co-offender] may not be so inadequate as to warrant it being increased on a Crown appeal,[30] ..the [co-offender’s] sentence is excessively lenient. … In my opinion, merely to reduce the appellant's sentence to that of [the co-offender] would be to convert an appropriate sentence into one which is inappropriately low. Such a course would give rise to a justifiable concern in the mind of the public that there is a failure to maintain appropriate sentences.
But it may nevertheless be possible to achieve the objective of eliminating the injustice caused by the discrepancy in the sentences by reducing the sentence under attack without necessarily equating it in all respects with the lenient sentence. Whether and, if so, how this objective can be achieved will depend upon the circumstances of the particular case, and the courts have not always been uniform in their statements as to the resolution of this difficulty. In Goddard, for example, Kennedy, J. recognised that the court may not lower an otherwise appropriate sentence to the level of a ‘patently’ inadequate sentence, but it might make some reduction in the sentence particularly where it is not at the lowest level of the appropriate range and where it could fairly be lowered to a level which might be regarded as (merely) ‘inadequate’. His Honour noted that a like approach was adopted by Anderson, J. in Capper v R.[31] …[32]
In Goddard, however, the question was not whether the sentence was manifestly excessive; it was whether there was manifest disparity between the sentences in question such as to warrant relevant interference by the Court. In those circumstances, a minor reduction in the more severe sentence, if otherwise appropriate, would not amount to an impermissible ‘tinkering’ or ‘fiddling’ with it.
Another approach adopted by the courts in dealing with the injustice engendered by the discrepancy in the sentences where the second sentence is regarded as being excessively low, is not to seek to match the applicant's sentence to the lenient one, but to re-sentence the applicant and, in the course of constructing the new sentence, have regard to the sentence that was imposed on the co-offender, thereby taking it into account in the broad sense in the course of exercising the sentencing discretion - see R v Reardon[33] and R v Kucharski.[34] In the latter case, Hayne, J.A. followed the course suggested in Pecora v R,[35] namely, in the context of re-sentencing the applicant, regard should be had to the sentence that was imposed on the co-offenders, but giving it only such weight as was appropriate in all the circumstances.
In my opinion, the approach adopted by Hayne, J.A. (with whom Brooking, J.A. and Ashley, A.J.A. agreed) should be followed in this case.[36]
[26](2000) 116 A Crim R 90 (Chernov JA, Winneke P and Buchanan JA agreeing).
[27]His Honour referred to the judgment of Gibbs CJ in Lowe v The Queen (1984) 154 CLR 606, 610; of King CJ in R v MacGowan (1986) 42 SASR, 580, 583.
[28](1986) 42 SASR 580 [583].
[29]Goddard v The Queen [1991] 21 WAR 541.
[30]Mr Coghlan eschewed submitting that the sentence was manifestly inadequate.
[31](1993) 69 A Crim R 64, 74.
[32]Reference was made to the different approach taken by Pidgeon and Murray JJ.
[33](1996) 89 A Crim R 180, 182 (Gleeson CJ).
[34](Unreported, Victorian Supreme Court of Appeal, Hayne JA, 23 June 1997).
[35][1980] VR 499, 502–504.
[36]Wilson v The Queen (2000) 116 A Crim R 90 (Chernov JA, Winneke P and Buchanan JA agreeing), 96 [19]–[23].
A similar view was taken in the judgment of Eames JA (Callaway and Buchanan JJA agreeing) in R v Nguyen[37] the relevant part of which is extracted in the passage from Scerri set out above.
[37][2005] VSCA 40 [20]–[21].
More recently that approach has been applied in O’Loughlan v R,[38] where Weinberg and Bongiorno JJA said that:
Though [the co-accused’s] total effective sentence of 20 months’ imprisonment was undoubtedly lenient (some might say extremely so), it does not follow that this court should reject what seems to us to be an otherwise compelling parity argument put on behalf of the appellant. On any view, principles of parity must be taken into account, even in circumstances where the sentence imposed upon a co-offender is regarded as inadequate.
That does not mean that principles of parity require an appellate court to impose what is, in its view, a wholly inappropriate sentence. It might mean, however, that a sentence towards the very bottom of the range is called for, even if that sentence, when viewed objectively, is otherwise seen as being too low.
In the end, the question remains whether there is such a marked disparity between the treatment accorded to the appellant, and that of his co-offender, as to entitle him to say that he has a justifiable sense of grievance.
…
That does not mean that, in allowing this appeal and re-sentencing the appellant, we would impose a sentence that we would regard as wholly inappropriate, or outside the range. It does mean, however, that we would reduce the disparity between the two sentences so as to mitigate the justifiable sense of grievance that the appellant presently has.[39]
[38][2010] VSCA 175 [31]–[33], [37].
[39]Ibid [31]–[33], [37].
A similar view was expressed by this Court in Fletcher v The Queen[40] and in Farrugia v The Queen.[41]
[40][2011] VSCA 4 [31]–[32].
[41](2011) 32 VR 140. See also DPP v Holder [2014] VSCA 61 [5] where that approach seems to have been accepted, although that was a Director’s appeal.
Freiberg summarises Victorian law on this issue as follows:
The principle of parity between sentences does not require a court to impose exactly the same sentence imposed upon a co‑offender, or one which is so low as to be wholly disproportionate to the offence, merely because such a sentence has been imposed on a co-offender. In such cases an offender’s sense of grievance must yield to the public interest in having an appropriate sentence being imposed. [citations omitted][42]
[42]Arie Freiberg, Fox and Freiberg's Sentencing: State and Federal Law in Victoria (Lawbook Co, 3rd ed, 2014) 466 [6.215].
To summarise, the avoidance of an unjustifiable disparity between the sentence imposed on an appellant and a co-offender may require the reduction of the appellant’s sentence to a level which might otherwise be regarded as at the bottom end of the range, but not to the point where the offender’s sentence is wholly inappropriate or outside the range.
This is consistent with the observations of French CJ, Crennan and Keifel JJ in Green.[43] In that case the Court considered the application of the parity principle in a situation where as the result of a Crown appeal to the New South Wales Court of Criminal Appeal, the appellants’ sentences had been increased and it was argued that the increase created a disparity between the sentences imposed on the Crown appeal and the sentence imposed on a co-offender. Their Honours referred to the importance of the concept of equal justice and reasonable consistency in sentencing offenders. They emphasised that where there was an unjustifiable disparity in the sentences imposed on co-offenders it was not necessary for an appellant to demonstrate that his or her sentence was manifestly excessive. They went on to consider —
whether a sentence which would otherwise be appropriate can be reduced on the ground of disparity to a level which, had there been no disparity, would be regarded as erroneously lenient. In Lowe that question was answered explicitly in the affirmative by Mason J and less explicitly but to like effect by Dawson J, with whom Wilson J agreed. It has also been answered in the affirmative in a number of cases in the Court of Criminal Appeal of New South Wales. On the other hand, as Simpson J correctly pointed out in R v Steele, the existence of a discretion, where unjustified disparity is shown, to reduce a co‑offender’s sentence to one which is inadequate does not amount to an obligation to do so. Certainly, the discretion of the Court of Criminal Appeal to reduce a sentence to a less than adequate level would not require it to consider reducing the sentence to a level which would be, as Street CJ put it in R v Draper, ‘an affront to the proper administration of justice’. Moreover, if the relevant sentencing legislation, on its proper construction, does not permit an inadequate sentence to be imposed, there can be no discretion on appeal to impose one.[44] Whether or not the discretion to reduce a sentence to an inadequate level is available, marked and unjustified disparity may be mitigated by reduction of the sentence appealed against to a level which, although lower, is still within the range of appropriate sentences.[45] [Emphasis added] [Citations omitted].[46]
[43](2011) 244 CLR 462.
[44]That proposition seems to have been implicit in the construction placed on s 6(1) of the Sentencing Act 1995 (WA) by Murray J in Goddard v The Queen (1999) 21 WAR 541 at 562 [61]. That subsection required that ‘a sentence imposed on an offender must be commensurate with the seriousness of the offence’.
[45]Green (2011) 244 CLR 462, 475 [33].
[46]Heydon J held that disparity had not been demonstrated and did not explicitly address the issue described above. Bell J referred to the view of the New South Wales Court of Appeal that ‘the elimination of disparity is not justified where it requires the reduction of an appropriate sentence to the level of an inadequate sentence imposed on a co-offender’ and said that the correctness of that principle was not raised by the appeals she was considering.
The emphasised words in the quotation above required their Honours to consider the purposes of sentencing described in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) which included ensuring that the offender is adequately punished for the offence and s 21A of that Act which required the Court to take account of the relative seriousness of the offence as well as including the common law parity principle. In their Honours’ view these provisions prevented a sentencing judge from imposing an inadequate sentence on that offender, where this was necessary to produce parity with the sentence imposed on a co-offender.
Similarly, s 5 (2)(c) of the Sentencing Act 1991 (Vic) requires the Court to have regard to ‘the nature and gravity of the offence’ in sentencing the offender.[47] In our view those words may well prevent the imposition of a manifestly inadequate sentence in order to give effect to parity.[48]
[47]See also the purposes of the Sentencing Act 1991 (Vic) s 1(d)(iv)(A) which provides that the purposes of the Act include preventing crime and promoting respect for the law by ensuring that offenders are only punished to the extent justified by, among other things, the nature and gravity of their offences.
[48]Their Honours noted that the parity principle operated differently in Crown appeals, see [36]‑[38] and noted that the Court might exercise its discretion not to increase a manifestly inadequate sentence in such an appeal when to do so would disturb parity between the respondent and a co-offender.
It follows that we must take account of the sentence imposed on Ahmad for the purposes of deciding whether the sentence imposed on the applicant gives rise to a justifiable sense of grievance, but we are not required to reduce the applicant’s sentence to the point where it becomes manifestly inadequate. In our opinion a reduction in the sentence imposed on the applicant for trafficking in a commercial quantity of the drug over a significant period would result in him receiving an inadequate sentence, even having regard to the sentence imposed on his brother and the other mitigating factors on which he was entitled to rely.
However, even if that view is incorrect, we do not consider that there was an unjustifiable disparity between the sentences imposed on the applicant and on Ahmad. The two year, nine month difference in their total effective sentences and the eighteen month difference in the non-parole periods adequately reflected the difference in the nature of their offending and their personal circumstances. His Honour was aware of the differences in the moral culpability of the applicant and Ahmad and took parity into account in sentencing the applicant. The sentencing judge recognised that Ahmad was the principal in the drug trafficking operation, that he traded in a far larger amount of drugs than the applicant and that the applicant acted under his supervision. In comparing the sentences imposed on both offenders, it is also necessary to take account of the fact that Ahmad was suffering from a mental illness at the time of his offending, and the judge who sentenced him said that this permitted ‘a modest amelioration of the sentence based on Verdins principles’.[49] Moreover, the judge was satisfied that Ahmad’s subsequent diagnosis of schizophrenia warranted further mitigation of the sentence which would otherwise have been imposed.
[49]DPP v Taleb [2013] VCC 1311 [23].
Counsel for the applicant placed only faint reliance on lack of parity between the sentences imposed on the applicant and on Mr Kelly and Ms Cutri. Both Mr Kelly and Ms Cutri were sentenced for trafficking simpliciter and their convictions arose out of their purchase of smaller quantities of drugs from either Ahmad or the applicant. The applicant is not entitled to have ‘a justifiable sense of grievance’ in comparing his own sentence with the sentences imposed on either of these co‑offenders.
For these reasons we would refuse the application for leave to appeal.
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